4 6.1 WRONGFUL-DEATH AND SURVIVAL ACTIONS I. [6.1] INTRODUCTION While trying a wrongful-death action may seem the same as trying a personal injury case, there are significant differences that impact trial preparation, strategy, and presentation. For example, what if the only eyewitness to an accident resulting in a death turns out to be the defendant in a civil suit brought by the deceased's personal representative? Will the defendant be allowed to testify over objection? Or, if there are no surviving eyewitnesses at all, can a wrongful-death case succeed? And how does the plaintiffestablish damages in a wrongful-death case? What special problems do defendants encounter in wrongful-death cases? This chapter addresses these and other questions as well as some of the unique aspects of trying a wrongful-death case, while incidentally offering some information applicable to any type of case. For example, in the complex process of preparing for a wrongful-death trial, just like preparing for the simplest of cases, much emphasis should be placed on organizing the evidence and law, argument and witnesses, and conforming to the proper procedures and applicable court rules. II. [6.2] ROLE OF JURY SCIENCE Jury science is playing an increasingly important role in litigation generally and wrongfuldeath litigation in particular. In high-stakes jury trials, lawyers rely on jury consultants to gain a winning edge. Jury consultants provide insight into juror behavior and help attorneys craft arguments and trial themes that will persuade juries. Jury consultants also use empirical data to predict juror predispositions and provide invaluable assistance in voir dire and the jury selection process. Jury consultants have grown iu popularity due to highly publicized trials including the O.J. Simpson, Scott Peterson and Martha Stewart trials. Sally Kane, 10 Hot LegalCareersfor Non-Lawyers (About.com, 2010). Hiring jury consultants and conducting "mock" trials are now established methods employed by some trial attorneys trying to predict or influence a trial's outcome. Other techniques, such as shadow juries are also becoming increasingly popular. Jury science is a growing field, and when it comes to helping litigants know and influence their juries, this science is advancing rapidly. Gaining insight into the likes, dislikes, and predispositions of a venire or a jury gives the attorney the opportonity to develop a more informed trial strategy. While the incorporation of jury science into trial preparation can be costly, the benefits in many wrongful-death cases outweigh the costs. Before the commencement of trial, focus groups or "mock" trials might be conducted to help lawyers and parties better understand the power or lack of power of their evidence and arguments. Moreover, it is no longer unusual for jury consultants to assist with developing arguments and demonstrative evidence, and they often attend the trial to assist with voir dire and provide continuous feedback thereafter. 6-4

5 TRIAL AND EVIDENTIARY CONSIDERATIONS IN WRONGFUL-DEATH ACTIONS 6.3 No one, including jury consultants, has a fool proofcrystal ball that can predict the outcome of jury deliberations in a wrongful-death case. However, trial lawyers in all cases need all the information they can get about how the decision makers are likely to view the case; and this is especially true in wrongful-death cases. Some people believe wrongful-death plaintiffs, even those with clearly meritorious cases, are wrongdoers themselves seeking blood money. What jury consultants can do is help trial lawyers ferret out such issues and develop strategies to deal with them. III. CONFERENCES BEFORE JURY SELECTION A. [6.31 In General At the final pretrial conference or on the day of trial before jury selection begins, wellprepared trial attorneys have the opportunity to advance their client's position with the court. As in all other facets of trial, preparation for this is critical because this conference with the trial judge can set the tone for the rest ofthe trial. Counsel for the plaintiffin a wrongful-death case must be prepared to introduce the decedent to the court and quickly state the central facts of the case, the legal basis for recovery, the items of legally compensable damages, and the negotiation history. Defense lawyers, on the other hand, should be ready to rapidly identify the disputed issues. It is common for trial judges to get involved in settlement discussions at this late phase and because most judges have less experience with wrongful death than personal injury damages evaluation, counsel should be prepared to explain the elements of recoverable damages and explain the evidence on each element in more detail than might be called for in an injury case. Both lawyers should also be in a position to privately and candidly discuss with the court not ouly the strengths and weaknesses of their client's position, but also the extent to which the client does or does not understand the risks. Above all, the trial lawyers who have lived with the case a for a long time and know more about it than the judge could about the case can fulfill their duties to the court and public, without sacrificing their duty of zealous representation of their clients, by quickly and accurately providing the judge with the information the judge will need to do the best job possible either assisting the parties to settle the case or presiding over the trial. The last pretrial conference with the court before jury selection is also an opportune time for the trial attorney to alert the court to any scheduling or trial management issues, determine what procedures will be followed at each stage of the trial, and alert the judge to any other issues requiring special attention. Of course, counsel must also review and have copies available of all applicable rules. In state court, these include the new lllinois Rules ofevidence, the Illinois Code of Civil Procedure, 735 ILCS , et seq., the illinois Supreme Court Rules, the local court rules, and the rules and procedures, if any, followed by the trial judge. In federal court, these include the Federal Rules of Evidence, the Federal Rules of Civil Procedure, the district court local rules, and the rules and procedures, ifany, followed by the trial judge. The last pretrial conference with the court before jury selection may also be the right time for dealing with any objections to the use ofvisual aids or exhibits during opeuing statements. ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 6-5

6 6.4 WRONGFUL-DEATH AND SURVIVAL ACTIONS B. [6.4] Preparation- What To Bring Some of the documents trial attorneys might prepare and bring to the final pretrial conference or day oftrial preliminary conference include: 1. a statement of the case; 2. motions in limine; 3. other motions; 4. trial briefs; 5. notices to produce at trial; 6. draft jury instructions; 7. II pretrial memorandum; 8. exhibits; and 9. any otheritems requested by the court. These items are discussed in more detail in below. 1. [6.5] Statementof the Case Although a statement of the case is not required by any provision of the Code of Civil Procedure or the lllinois Supreme Court Rules, some local rules and most judges require a statement ofthe case. For example, one Illinois judicial circuit's rule states:. Unless the court orders otherwise, in all jury cases the State's Attorney in criminal cases, and the plaintiff's attorney in civil cases, shall prepare and submit to the Court and opposing parties a Statement of the Nature of the case to be read by tbe Court to the venire prior to voir dire examination. The statement shall include the time, date, and place of the alleged occurrence or offense and a brief description thereof, the name of the parties involved and their counsel and a list of witnesses,. occupation if relevant and town of residence, whom the parties expect to call. Opposing counsel may suggest amendments to the statement prior to it being read to the venire. 19th Judicial Circuit Court Rille Rille 5.03 is a clear statement ofthe purpose ofa statement of the case and provides excellent guidance on how to prepare one for jurisdictions which have no rule of their own. The rule dictates that it is the plaintiff's attorney's job to prepare and submit the first draft of the statement, while defense counsel should be prepared to offer any desired changes. 6-6

7 TRIAL AND EVIDENTIARY CONSIDERATIONS IN WRONGFUL-DEATH ACTIONS 6.6 For example, in a wrongful-death case the author tried in Winnebago Connty, this statement of the nature of the case was agreed to by the parties and read to the venire at the outset ofjury selection: This lawsuit arises out of a boating accident on June 30, 2001 on Clear lake, Wisconsin. Amanda Backes, age 9, was being pulled on an inner tube behind a power boat driven by Sonnie Smith. Joe Gibson was operating a Bombardier Sea-Doo personal watercraft on the lake. A collision occurred between the inner tube and the personal watercraft, and Amanda Backes died from the injuries. This lawsnit is brought by the parents of Amanda Backes, seeking money damages from Sonnie Smith as the operator of the power boat, Joe Gibson as the operator of the personal watercraft, and Bombardier, Inc. as the designer and manufacturer of the Sea-Doo personal watercraft. Bombardier, Inc. has also filed a claim against the spotter in the power boat, Yvette Oliver. 2. [6.6] Motions in Limine A "motion in limine" has been defined as "[aj pretrial request that certain inadmissible evidence not be referred to or offered at trial." BLACK'S LAW DICTIONARY, p (9th ed. 2009). One difficulty common to all motions in limine is that they occur - by definition out of the normal trial context, and resolving such a motion requires the trial court to determine what that context will be. Thus, the court must receive offers of proof cousistiug either of live testimony or counsel's representations that the court finds sufficiently credible and reliable. Because a motion in limine typically asks the court to bar certain evidence, the supreme court has deemed such motions "powerful weapons" and has urged caution in their use. Reidelberger v. Highland Body Shop, Inc., 83 IU.2d 545, 550, 416 N.E.2d 268, 271, 48 IlLDec. 237 (1981). People ofstate of Illinois v. Owen, 299 lll.app.3d 818, 701 N.E.2d 1174, 1178,233 llldec. 900 (4th Dist, 1998). Motions in limine must be submitted in writing. Cunningham v. Millers General Insurance Co., 227 1ll.App.3d 201,591 N.E.2d 80,83, 169 llldec. 200 (4th Dis!. 1992); Lundell v. Citrano, 129 1ll.App.3d 390, 472 N.E.2d 541, 545, 84 llldec. 581 (1st Dis!. 1984). The reliefrequested in a motion in limine should be specific. E.g., Reidelberger, supra. The moving party bears the burden, at the risk of waiver, to obtain a ruling from the court on the motion. Department of Public Works & BuildingsofState ofillinois v. Roehrig, 45 1ll.App.3d 189, 359 N.E.2d 752, 760, 3 Il1.Dec. 893 (5th Dis!. 1976). Rulings on motions in limine are interlocutory in nature and may be changed during trial. Cunningham, supra; Romanek-Golub & Co. v. Anvan Hotel Corp., 168 1ll.App.3d 1031, 522 N.E.2d 1341, 1347, 119 Ill.Dec. 482 (1st Dist. 1988). Trial courts have broad discretion and can deny motions in limine and instead consider the evidentiary issue only after the contested evidence is offered in the normal course of trial. McMath v. Katholi, 304 1ll.App.3d 369, 711 N.E.2d 1135, 1140, 238 1ll.Dec. 474 (4th Dis!. 1999), rev'd on other grounds, 191 Il1.2d 251 (2000). To avoid any risk of waiver, counsel should make an offer of proof as to any matter ILUNOIS INSTITUTE FOR CONTINUING LEGALEDUCATION 6-7

8 6.6 WRONGFUL-DEATH AND SURVIVAL ACTIONS barred by the COurt'S in limine rulings and should, perhaps outside the heariug ofthe jury, move to admit the evideuce excluded at the appropriate point iu the trial. Similarly, ifthe court rules in limine that evidence will be admitted, counsel opposing the introduction of the evidence should renew the objections on the record at the appropriate point during the trial. Illinois State Toll. Highway Authority v. Heritage Standard Bank & Trust Co., 163 ll1.2d 498, 645 N.E.2d 896, 898, 206 Ill.Dec. 644 (1994). Motions in limine have at least two principal advantages. First, the attorney has time before trial to carefully research, reasou, and draft the arguments relating to significant evidentiary issues. Second, ifthe judge rules on the motion, the attorneys have the advantage ofpreparing the case knowing the rulings. For a general discussion ofmotions in limine, see Christopher B. Mead, Motions in Limine: The Little Motion That Could, 24 Litig., No.2, 52 (Winter 1998). Attorneys trying wrongful-death cases should consider several strategic issues before filing a motion in limine. For example, by filing a motion in limine concerning the admissibility of contested evidence, counsel provides the opponent with additional time to respond to the evidentiary arguments and also to counter the evidence at trial. Similarly, the opposition will benefit from having advance notice of counsel's challenges to its evidence and may be in a better position to respond than if forced to respond in the heat of trial. Moreover, filing the motion may not result in any greater degree of certainty because the judge is not obligated to rule on a motion in limine before trial. And since any rulings are interlocutory, the trial judge may have a change of heart during trial. These and other competing considerations should be weighed for each substantive motion in limine before deciding whether it should be brought. When a motion in limine is filed, the trial attorney should prepare a draft order granting the reliefrequested to save time and to ensure that the order is sufficiently comprehensive to provide the desired protection. The order should require that opposing counsel admonish all witnesses not to refer to any matters that have been barred and specify that the order applies to all phases of trial including voir dire. The subject matter of a particular motion in limine is a function of the evidence, legal theories, and cast of characters involved. Some motions are no different from those filed in personal injury actions. For example, a corporate defendant may wish to move in limine to bar reference to the size or financial condition of the corporation. Other motions apply only to wrongful-death cases, such as motions seeking to disqualify evidence under the Dead-Man's Act, 735 ILCS 5/8-201, et seq. See below. Examples ofmotions in limine that may be useful in wrongful-death cases follow. This list is meant to be illustrative, not exhaustive. The facts of the case, its problems, and counsel's creativity are the most important guideposts. To bar the testimony of a witness who is incompetent to testify under the Dead-Man's Act. The so-called Dead-Man's Act is discussed in detail in below. It is appropriate for counsel for the personal representative ofthe deceased to raise Dead-Man's Act objections by motion in limine. See Kelley v. First State Bank ofprinceton, 81 Ill.App.3d 402, 401 N.E.2d 247, 36 ll1.dec. 566 (3d Dist. 1980). 6-8

9 TRIAL AND EVIDENTIARY CONSIDERATIONS IN WRONGFUL~DEATH ACTIONS 6.6 To bar evidence of the fault of the plaintiffs' employer, parties who have settled, and nonparties. 735 ILCS 5/ governs joint liability and sets forth Illinois' form of modified joint and several liability, which is sometimes referred to as the "25 percent rule." The statute specifies who is considered in the fault allocation - "the defendants sued by the plaintiff, and any third party defendant except the plaintiffs employer." Id. Moreover, the Illinois Supreme Court has held 2-lll7 does not permit apportionment of fault to settling defendants. Ready v. United/Goedecke Services, Inc; 232 Ill.2d 369, 905 N.E.2d 725, 328 Ill.Dec. 836 (2008) (plurality op.). Thus evidence of the fault of the plaintiffs' employer, parties who have settled, and nonparties is irrelevant to allocation of fault nuder 2-ll17 and, in some cases, may be an appropriate topic for a motion in limine. However, the law has been rapidly developing in this area. For example, in Ready v. United/Goedecke Services, Inc., 238 Ill.Zd 582, 939 N.E.2d 417, 422, 345 Ill.Dec. 574 (2010) (plurality op.), the Illinois Supreme Court plurality found the trial court erred in barring evidence of a nonparty whose conduct the defendant argued was the sole proximate cause of an accident resulting in wrongful death: United was entitled to present evidence to support a sole proximate cause jury instruction, and the question becomes whether that evidence would have entitled United to such an instruction.. There must be some evidence in the record to justify an instruction, and the second paragraph of IPI Civil (2000) No should be given where there is evidence, albeit slight and unpersuasive, tending to show that the sole proximate cause of the accident was the condnct of a party other than the defendant. The plurality went on to review the evidence, however, and determine it was insufficient to justify the sole cause jury instruction and thus the trial court's error in excluding the evidence in limine was deemed harruless. 939 N.E.2d at See also Nolan v. Wei/-McLain, 233 m.2d 416, 910 N.E.2d 549, 331 Ill.Dec. 140 (2009); Leonardi v. Loyola University of Chicago, 168 Il1.2d 83, 658 N.E.2d 450,212 Ill.Dec. 968 (1995). Absent any evidence the sole proximate cause of the wrongful death was the fault of the plaintiffs' employer, parties who have settled, or nonparties, nuder Ready, supra; Nolan, supra; and Leonardi, supra, it would seem appropriate to grant a motion in limine seeking to preclude such evidence and argument. However, the latest word seems to be that such motions should be denied when there is some evidence, "albeit slight and unpersuasive, tending to show that the sole proximate cause of the accident was the conduct of a party other than the defendant." Ready, supra, 939 N.E.2d at 422. Nevertheless, "slight and unpersuasive" evidence does not appear to be enough to quality for a jury instruction on nonparty sole proximate cause, and, without one, a nonparty sole proximate cause argument would be clearly inappropriate and a proper topic for a motion in limine. Clearly, the last word in this thomy area of the developing law has not been written. To allow and set the parameters of counsel's participation in jury selection. Illinois Supreme Court Rule 234 requires the court to conduct the voir dire examination ofprospective jurors, authorizes the court to allow parties "to submit additional questions to it for further inquiry ILUNOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 6-9

10 6.6 WRONGFUL-DEATH AND SURVIVAL ACTIONS if it thinks they are appropriate[,]" and states the court "shall permit the parties to supplement the examination by such direct inquiry as the court deems proper for a reasonable period of time dependingupon the length of examination by the court, the complexity of the case, and the nature and extent of the damages." A motion in limine is an appropriate means to clarify with the court the role; if any, counsel will be allowed in direct questioning of jurors. The Illinois Supreme Court has clarified the meaning of S.Ct. Ru1e 234 in construing the identical language of S.Ct. Rule 431 (which applies in criminal cases): Thus, what the rule clearly mandates is that the trial court consider: (1) the length of examination by the court; (2) the complexity of the case; and (3) the nature of the charges; and then determine, based on those factors, whatever direct questioning by the attorneys would be appropriate. Trial courts may no longer simply dispense with attorney questioning whenever they want. We agree with the Allen court's observation that the "the trial court is to exercise its discretion in favor of permitting direct inquiry of jurors by attorneys." [People ofstate ofillinois v. Allen, 313 1ll.App.3d, 730 N.E.2d 1216, 1221, 246 IlLDec. 751 (2d Dist. 2000)].We are not prepared to say, however, that it is impossible to conceive of a case in which the court could determine, based on the nature of the charge, the complexity ofthe case, and the length of the court's examination, that no attorney questioning would be necessary... The rule does not state that the court shall allow the attorneys to question the entire venire in every case. Rather, it provides that the court shall allow whatever attorney questioning it deems proper after considering the factors set forth in the rule. People ofstate ofillinois v. Garstecki, 234 1l1.2d 430, 917 N.E.2d 465, 474, 334 IlLDec. 639 (2009). Evidence of consumption of alcohol or drugs without evidence of intoxication. Evidence of consumption of alcohol can be unfairly prejudicial when there is no evidence that the consumption played any causal role in the accident. This type of evidence is probably best dealt with by a motion in limine. See Fraher v. Inocencio, 121 Ill.App.3d 12, 459 N.E.2d 11, 76 IlLDec. 602 (4th Dist. 1984). Collateral source payments. Evidence that an injured person's or decedent's economic losses have been paid by a third party independent from the tortfeasor is generally inadmissible under the collateral-source rule. Arthur v. Catour, 216 lll.2d 72, 833 N.E.2d 847, 851, 295 Ill.Dec. 641 (2005). Such matters may be appropriate topics for a motion in limine. The theory behind this rule is to keep the jury from leaming anything about collateral income that cou1d influence its decision. Boden v. Crawford, 196 lllapp.3d 71,552 N.E.2d 1287, 142 llldec. 546 (4th Dist. 1990). One of the most common applications of the rule is to prevent defendants from introducing evidence that a plaintiff's losses have been compensated, even in part, by insurance. Arthur, supra, 833 N.E.2d at 852. Therefore, the plaintiff may claim the entire amonnt initially billed by the healthcare provider for services rendered even if the provider accepted payment of a reduced rate from the plaintiff's insurer. 833 N.E.2d at 849. Although in certain medical malpractice cases the judge may reduce the plaintiff's verdict after trial to reflect payment by collateral sources pursuant to 735 ILCS and , evidence of the collateral sourcepaymentsremains inadmissible during the trial. See Boden, supra

11 TRIAL AND EVIDENTIARY CONSIDERATIONS IN WRONGFUL-DEATH ACTIONS 6.6 Nontaxability of the award. In state court, the jury is normally not told that the wrongfuldeath award is not taxable. Klawonn v. Mitchell, 105 lll.2d 450,475 N.E.2d 857, 859, 86 Ill.Dec, 478 (1985). The opposite rule is followed by the federal courts in the Seventh Circuit, even in diversity cases.in re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 701 F.2d 1189, 1200 (7th Cir. 1983). When the jury will not be instructed about the nontaxability of the award, a motion in limine is appropriate. Id. United States District Court Judge Jeanne E. Scott of the Central District of lllinois most recently summarizedthe present state of the law on this issue: In diversity cases, where state law decisions on jury instructions or the admissibility of evidence are based on substantive state law, federal courts must apply that state law. Id. Where such decisions are based only on procedural law, or on incorrect interpretations of federal law, federal law governs. Id, Under federal law, jurors are instructed that their lost wages damage award is not subject to taxation. In re Air Crash Disaster Near Chicago, m: on May 25,1979,803 F.2d 304, 314 (7th Cir. 1986) (Air Crash 11). Thus, whether such an instruction - and argument or evidence related to it - is proper here depends on whether the Illinois prohibition is based on substantive law. In 1983, in Air Crash I, the Seventh Circuit held that Illinois' ban on a tax instruction was not substantive. Air Crash I, 701 F.2d at Specifically, it concluded that in Hall v. Chicago & North Western Railway, the Iflinois Supreme Court had prohibited such an instruction on two procedural bases aud one misunderstanding of federal law. [Hall v. Chicago & North Western Ry., 5 1l1.2d 135, 125 N.E.2d 77 (1955)]. In 1985, the Illinois Supreme Court issued another decision on this issue. See [Klawonn v. Mitchell, 105 lll.2d 450,475 N.E.2d 857, 86 lll.dec. 478 (1985)]. The illinois Supreme Court did not address Air Crash I, but it noted that it disagreed with other federal cases allowing this instruction and reaffirmed its procedural bases for banning the instruction. See Klawonn, 475 N.E.2d at In 1986, in Air Crash II, the Seventh Circuit reaffirmed, in dicta, its conclusion that Illinois had no substantive reason for refusing the instruction. Air Crash II, 803 F.2d at 315.It did not address Klawonn. District courts in this circuit have held that Klawonn did not change the state of the law in Illinois, however, and have continued to reject motions in limine calling for a ban on tax instructions. See, e.g., Opio v. Wurr, 901 F.Supp. 1370, (N.D. Ill, 1995); see also Couchv. Village ofdixmoor, 2006 WL , at *2 (N.D.I1t Nov. 27, 2006); Nichols v. Johnson, 2002 WL , at *1 (N.D. m. May 1, 2002). Thus, this Court concludes that it must follow federal law. It follows that argument or evidence on this issue is allowed as well. Cimaglia v. Union Pacific R.R., No , 2009 WL at **8-9 (C.D.lll. Feb. 29, 2009). Other motions in limine to consider include barring reference that the plaintiff may ask or may have asked for a greater amount of money than the plaintiff actually expects to receive (Kallas v. Lee, 22 lll.app.3d 496,317 N.E.2d 704 (1st Dist. 1974); Carlasare v. Wilhelmi, 134 ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 6-11

12 6.7 WRONGFUL-DEATH AND SURVIVAL ACTIONS m.app.3d 1, 479 N.E.2d 1073, 89lll.Dec. 67 (1st Dist. 1985)), barring reference that the plaintiff and the defendant have discussed the possibilityof settling the plaintiff's claim (Barkei v. Delnor Hospital, 176ll1.App.3d 681,531 N.E.2d 413, 126 lll.dec. 118 (2d Dist. 1988)), barring any evidence concerning opinions not raised by the defendant's experts in timely filed answers to S.Ct. Rule 213 interrogatories and in deposition testimony, and barring the defendants from calling witnesses other than those listed in interrogatory answers. 3. [6.7] Other Motions Frequently, there are problems withthe pleadings and other miscellaneous legal matters to be resolved at the outset oftrial. Written motions pertainingto suchmatters are appropriate. In addition, parties commonly file motions, usually uncontested, to exclude nonparty witnesses from attending the trial while other witnesses are testifying. E.g., People ofstate of Illinois v. Mack, 25 m.za 416, 185 N.E.2d 154 (1962). The new lllinois Rules ofevidence cover the topic: At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by law to be present. m.r.evid On the plaintiff's side in a wrongful death, the law is clear that "[t]he real party in interest cannot be excluded under an exclusionary order even though he is not named as a party." 1 Robert S. Hunter, TRIAL HANDBOOK FOR ILLINOIS LAWYERS, CNIL 17.21, p. 253 (7th ed. 1997). See also Grant v. Paluch, 61 m.app.2d 247, 210 N.E.2d 35 (1st Dist. 1965). Therefore; in a wrongful-death case, the statutory beneficiaries, as real parties in interest, are entitled to attend the entire trial in addition to the personal representative ofthe deceased's estate. 4. [6.8] Trial Briefs Whether the rules require it or not, well-prepared trial lawyers usually supply the court with one or more trial briefs before the trial begins. Trial briefs can be particularly important in wrongful-death cases because these cases are less common thanpersonal injury cases. Usually, there is no set form for trial briefs. They range from a full treatment ofthe facts and law to short briefs on particular issues of law likely to arise during trial. While the lawyer has lived with the case for months or years, the judge is called on to make important rulings soon after his or her first introduction to the facts of the case. Consequently, trial briefs, like all presentations to the trial judge, should be concise, candid, and accurate. Liberal use of argument headings is a good practice, so that the judge may skim the brief and stay oriented to the main points. The brief should not dwell on obvious points oflaw. Contested points oflaw, on the other hand, should be explained in detail with citations to the crucial statutes and cases

13 TRIAL AND EVIDENTIARY CONSIDERATIONS IN WRONGFUL-DEATH ACTIONS 6.10 Trial briefs should not be written in haste just before trial. Instead, beginning with the first interview with the client and continuing through all stages of trial preparation, the important issues of law should be identified and organized. Trial briefs in wrongful-death cases should specifically address the problems of the case. For example, if there will be no eyewitness testimony regarding the critical events, the plaintiff should prepare a briefexplaining why the evidence is sufficient to withstand a motion for directed verdict. Ifthe Dead-Man's Act, 735 ILCS 5/8-201, is not waived, the court should be informed of this fact in a trial brief and persuaded that the case can be proved on that basis. When defending such a case, counsel should prepare a trial brief concerning the inapplicability of the Act or waiver. Ifat trial the plaintiff unintentionally waives the Dead-Man's Act objection then argues he or she did not, the defense attorney will have a better chance of a favorable ruling on waiver if a strong trial briefprepares the judge to be on the alert for a waiver. There is an advantage in some cases to separate trial briefs on each significant legal issue. Since opposing counsel may not anticipate all issues, the briefs can be used on an as-needed basis as issues arise during trial, without overeducating an unprepared opponent. 5. [6.9] Notices To Produce at Trial Supreme Court Rule 237(b) states: The appearance at the trial of a party or a person who at the time of trial is an officer, director, or employee of a party may be required by serving the party with a notice designating the person who is required to appear. The notice also may require the production at the trial of. documents or tangible things.. If the party or person is a nonresident of the county, the court may order any terms and conditions in connection with his or her appearance at the trial that are just, including payment of his or her reasonable expenses. Upon a failure to comply with the notice, the court may enter any order that is just, including any order provided for in Rule 219(c) that may be appropriate. The notice to produce at trial can be used for exhibits as well as for compelling witnesses to appear for adverse examination. Pursuant to S.Ct. Rule 237(b), parties may also be required to bring witnesses under their control to lllinois from other states. Attorneys shonld review their Rule 237 requests with opposing counsel and obtain responses on the record before jury selection begins. The court will usually not be present when this is done. In addition, lawyers should prepare any objections to the opponent's notice to produce and be prepared to produce all responsive items and witnesses. Any remaining issues requiring rulings can be brought to the court's attention at the conference before jury selection. 6. [6.10] Draft Jury Instructions Trial lawyers should bring proposed jury instnictions and verdict forms to the conference before jury selection, whether or not required by the rules. S.Ct. Rule 239(a) provides: ILUNOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 6-13

14 6.11 WRONGFUL-DEATH AND SURVIVAL ACTIONS Whenever lllinois Pattern Jury Instructious (!PI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court determines that it does not accurately state the law. Whenever IPI does not contain an instruction on a subject on which the court determines that the jury should be instructed, the instruction given in that subject shonld be simple, brief, impartial, and free from argument. There are pattern jury instructions concerning damages in wrongful-death actions and the Dead-Man's Act. 7. [6.11] Pretrial Memorandum At the preliminary confereuce, the plaintiff should have available an up-to-date pretrial memorandum. A pretrial memorandum that succinctly states the basic facts, including theories of liability and a damages summary, is an excellent way to begin discussion ofthe case, even ifthe court elects not to discuss settlement. 8. [6.12] Exhibits The trial attorney must determine which exhibits will be offered at trial. Originals and sufficient copies should be pre-marked. While some courts require this and others do not, trial lawyers should pre-mark and exchange exhibits whether or not required to do so since this can help keep otherwise able advocates from bumbling with exhibits at trial. Good exhibit management from the start helps lawyers protecttheir credibility. A strong visual presentation is at least as important in wrongful-death as in personal injury cases. Exhibits can range from expensive computer models and graphs to inexpensive blowups. All require thought and practice. Increasingly, use of video, digital imaging, and computer simulation is altering the way cases are tried. It is crucial that attorneys today understand and use current technology to benefit clients. While some courts require and are set up for the modern digital trial - and there are more of them every year - many courts do not yet require use of electronic imaging and lack the equipment to properly display it. But it is easier and less expensive than ever for trial attorneys to present evidence using digital tools, and use of these tools is especially helpful in wrongful-death cases. Going digital is no longer optional in wrongful-death and other high stakes litigation. Approximately 75 percent ofwhat people learn comes visually, and ouly about 10 percent of what we learn comes verbally. See, e.g., Thomas F. Parker, AppliedPsychology in Trial Practice, 7 Def.L.J. 33 (1960). Twenty percentof information delivered visually is remembered after three days, while only 10 percent of information presented verbally is remembered after the same period oftime. Yet 65 percent ofinformation delivered bothvisually and verbally is remembered after three days. See, e.g., Stanley E. Preiser, Demonstrative Evidence in Criminal Cases, 3 Trial DipLJ. 30 (Winter 1980). Therefore, the importance of demonstrative exhibits cannot be overstated, and the trial team should determine well in advance oftrial the types of demonstrative evidence to be used so that these exhibits can be prepared and reviewed for effectiveness long before a jury is seated

15 TRIAL AND EVIDENTIARY CONSIDERATIONS IN WRONGFUL-DEATH ACTIONS 6.14 Demonstrative evidence can be used if it is helpful to the jury and shows what it purports to show. E.g., Cisarik v. Palos Community Hospital, 144 1ll.2d 339, 579 N.E.2d 873, 162 Ill.Dec. 59 (1991). A trial court has the discretion to bar the use of demonstrative evidence that is inaccurate or would tend to mislead or confuse the jury. E.g., Gill v. Foster, 157 Ill.2d 304,626 N.E.2d 190, 193 Ill.Dec, 157 (1993). For example, in Barry v. Owens-Corning Fiberglas Corp., 282 Ill.App.3d 199, 668 N.E.2d 8, 217 1ll.Dec. 823 (1st Dist. 1996), a video taken during a surgical procedure was effectively used to illustrate the testimony of a thoracic surgeon and demonstrate abnormal lung tissue in a wrongful-death case arising out of asbestos exposure. There are many other examples ofthe use ofdemonstrative evidence in wrongful-death cases. E.g., Stenger v. Germanos, 265 1ll.App.3d 942, 639 N.E.2d 179,203 1ll.Dec. 140 (1st Dist, 1994) (use of diagram to assist jury in visualizing scene of accident); Robles v. Chicago Transit Authority, 235 1ll.App.3d 121, 601 N.E.2d 869, 176 m.dec. 171 (1st Dist, 1992) (drawing depicting interlock system); Grimming v. Alton & Southern Ry., 204 1l1.App.3d961, 562 N.E.2d 1086, 150 Ill.Dec. 283 (5th Dist, 1990) (chart depicting itemization of damages claimed during closing argrunent). 9. [6.13] Items Requested by the Court In addition to the items suggested in above, it is mandatory that counsel determine any special items that the court may require. These items, obviously, should be provided. Some judges assist lawyers by providing written lists of their rules or preferences. Attomeys who have tried cases before the judge are also good sources of information. It is appropriate to ask the judge directly about any special procedures to be followed. It may also help to find out what experience handling wrongful-death cases, if any, the court has. C. [6.14] Checklist of Issues To Resolve at the Conference Some ofthe' matters that may be covered at the conference beforejury selection include: 1. what the venire will be told in the court's opening remarks; 2. how voir dire will be conducted; 3. the number ofperemptory challenges that will be allowed; 4. whether back-striking will be allowed; 5. motions in limine; 6. other necessary motions; 7. rulings on all pending motions; 8. whether use ofexhibits during opening will be allowed; ILUNOIS. INSTITUTE FOR CONTINUING LEGAL EDUCATION 6-15

16 6.15 WRONGFUL-DEATH AND SURVIVAL ACTIONS 9. the court's hours, procedures, aud scheduling problems; 10. whether the case can be settled; II. S.C!. Rille 237 compliance couference with opposing counsel, usually just before or just after the conference with the court; 12. amendments to pleadings; and 13. stipulations. IV. VOIR DIRE A. [6.151 In General To properly engage in voir dire, trial attorneys should begin with a clear concept of both the important traits of the ideal juror and the most feared traits. This knowledge, superimposed on a clear understanding of the rules, the judge's style, and human nature, may suffice in some cases. Increasingly, however, trial attorneys are going further, employing psychologists and other professionals to assist during jury selection. The process by which venire members are questionedto determine their suitability to serve as jurors in a given case is called "voir dire," which is Law French for "to speak the truth." BLACK'S LAW DICTIONARY, p (9th ed, 2009). The manner in which attorneys may conduct a voir dire examination rests within the discretion of the trial judge. S.C!. Rille 234 states: The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching upon their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry ifit thinks they are appropriate, and shall permit the parties to snpplement the examination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of examination by the court, the complexity of the case, and the nature and extent of the damages. Questious shall not directly or indirectly concern matters of law or instructions. The court shall acquaint prospective jurors with the general duties and responsibilities of jurors. See People ofstate ofillinois v. Garstecki, 234 Hl.2d 430, 917 N.E.2d 465, 334 Ill.Dec. 639 (2009). Wrongful-death actions invariably involve substantial damage claims. Accordingly, when a jury demand has been made, the wrongful-death action will be tried before a jury of 12. See 735 ILCS 5/2-1105(b). The court may direct that an additional one or two people be selected as 6-16

17 TRIAL AND EVIDENTIARY CONSIDERATIONS IN WRONGFUL-DEATH ACTIONS 6.16 alternate jurors to be available to replace jurors who become unable to serve as jurors before the time the verdict is rendered. 735 ILCS 5/2-1106(b). To avoid the need for alternates, parties sometimes agree to waive alternates and stipulate that as few as teu remaining jurors at the conclusion of the case may decide it by unanimous verdict. Implicit biases present a huge problem all counsel should be aware of. In a new article, United States District Court Judge Mark Bennett shed light into the dark closet of this the implicit bias problem starting with its definition: Implicit biases are the plethora of fears, feelings, perceptions, and stereotypes that lie deep within our subconscious, without our conscious permission or acknowledgement. Indeed, social scientists are convinced that we are, for the most part, unaware of them. As a result, we unconsciously act on such biases even though we may consciously abhor them. Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias Jury Selection: The Problems ofjudge Dominated Voir Dire, the Failed Promise ofbatson, and Proposed Solutions, 4 Harvard L. & Pol'y Rev. 149 (2010). This breaking news topic goes beyond the scope of this chapter. The reader is referred to the full text of Judge Bennett's article for more in depth study, available at A judge's views and practices along with the local rules should be reviewed before voir dire. For example, Cook County Circnit Court Rule 5.3 provides: (a) Orderof calling jurors - Prospectivejurorswho are assembled in a centraljury room shall be called into the jury box in the order in which they were drawn from the jury assembly room. (b) Examination of service cards - The attorney for any party may examine the official service record cards of prospective jurors before or during their interrogation. B. [6.16] Preparation Preparing for voir dire in wrongful-death cases is similar to preparing for jury selection in personal injury cases; however, wrongful-death cases often involve snbstantial claims for noneconomic damages, and these may be poorly received by jurors inclined toward tort reform. For the plaintiff, removing such jurors for cause can be a challenge, and sometimes more peremptory challenges are needed than are available. And conditioning such jurors to be fair is easier said thandone. Trial lawyers should think long and hard about the types of people likely to view their case favorably or unfavorably. Then they must determine the questions needed to solicit the information and to conditionjurors favorably to their case. Trial lawyers must also have a method to keep track of each of the venire members and their responses. Many attorneys have voir dire transcribed so that any error during voir dire can be preserved. ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 6-17

18 6.16 WRONGFUL-DEATH AND SURVIVAL ACTIONS A detailed discussion on voir dire is beyond the scope of this chapter; for that, see Robert Marc Chemers, Ch. 2, The Jury: The "Right" to It and the Selection ofit, ILLINOIS CIVIL PRACTICE: TRYING THE CASE (IICLE, 2009). Nonetheless, the following is a brief list of some ofthe topics that, depending on the issues in the case, counsel may wish to explore (directly or indirectly) during voir dire: I. knowledge ofor predisposition concerning any ofthe attorneys, law firms, or parties, the decedent, the personal representative, the surviving spouse, or next ofkin; 2. knowledge of or predisposition concerning any witnesses; 3. knowledge, opinions, or predisposition regarding any facts or issues in the case; 4. exposure to pretrial publicity; 5. attitndes regarding the subject matter and relevant disciplines; 6. right ofthe parties to file suit and to defend suit; 7. marital status; 8. family statns; 9. employment history Gobs, employers, dates, descriptions, and any knowledge or attitudes regarding the parties, subject matter, and issues as a result ofemployment); 10. spouse orfamily members' employment; I J. any friend or family member who is a lawyer or in a field relevant to the case (e.g., medicine, engineering, or the defendant's industry); 12. educational background; 13. residences; 14. activities and hobbies; 15. organizations and affiliations; 16. prior jury experience; 17. prior involvement in lawsuits as a party or witness; 18. pertinent health conditions ofthe juror and offamily and friends; 6-18

19 TRIAL AND EVIDENTIARY CONSIDERATIONS IN WRONGFUL-DEATH ACTIONS accidents or injuries; 20. death of family members and friends; 21. papers and magazines read and television shows watched; 22. feelings regarding damages; and 23. feelings regardingthe legaltheories likelyto be encountered in the trial. There are many views on the goals of jury selection, some seemingly in conflict with the rules. For example, the law is clear that the overriding focus of voir dire is the selection of impartial jurors. Scully v. Otis Elevator Co., 2 Ill.App.3d 185,275 N.E.2d 905 (1st Dist. 1971). It is not the purpose ofvoir dire to indoctrinate or pre-educate the juror, obtain a pledge as to how a juror would decide under a given set of facts, or determine which party a juror favors in a case. Gasiorowski v. Homer, 47 I1I.App.3d 989, 365 N.E.2d 43, 7 Ill.Dec. 758 (1st Dist. 1977); Christian v. New York Central R.R., 28 IlI.App.2d 57, 170 N.E.2d 183 (4th Dist. 1960). Notwithstanding this, one author has observed: In addition to gathering basic information about jurors and their attitudes, [successful trial lawyers] (1) set the tone for the trial, (2) introduce concepts and evidence and condition the jurors for things to foilow at trial, (3) obtain pnblic commitments from jurors favorable to their cases, (4) use language that places their clients, their witnesses, and other relevant facets oftheir case in a favorable light, (5) rehearse the arguments they will use at trial, (6) refute opposition arguments, (7) enhance their credibility, and (8) create jury purpose. In other words, the period of voir dire becomes a preview of the entire trial, preparing jurors for what will follow and creating an atmosphere highly favorable to [counsel's] case. Robert V. Wells, SUCCESSFUL TRIAL TECHNIQUES OF EXPERT PRACTITIONERS, p. 84 (1988). Can this seeming conflict be harmonized? Perhaps not, but trial lawyers certainly must ferret out biased or prejudiced jurors who would be unable to return a verdict favorable to the client due to bias or prejudice. In this regard, it has sometimes been said that voir dire is more a process of jury deselection - eliminating jurors that may be inclined to find against one's client - than of jury selection. See Hon. Ron Spears, Jury Deselection: You don'tpick who serves on yourjury youpick who doesn't, 93 Ill.B.J. 420 (2005). The critical question, of course, is how to do this. An example of a bias some jurors have exhibited in wrongful-death cases is a beliefthat it is wrong for a family to seek monetary damages for noneconomic loss. For example, in Michael v. Kowalski, 813 S.W.2d 6 (Mo.App. 1991), a case that involved the wrongful death of a young adult survived by his parents in which only $100,000 in damages was awarded, one ofthe jurors said after the verdict she felt it was wrong to seek money damages for the loss of a son, and two others said it was wrong to seek monetary compensation in a wrongful-death case such as the one presented. Yet during voir dire this prejudices did not come out. For the plaintiff, it is crucial to ask appropriate questions and follow up to make sure that jurors such as these are not allowed to sit. Biases must be carefully rooted out. After a bad verdict is no time for jurors biases to first come to light. ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 6-19

20 6.17 WRONGFUL -DEATH AND SURVIVAl ACTIONS A frequent source of litigation involving voir dire in wrongful-death cases is whether the fact a decedent's surviving spouse has remarried may be mentioned. E.g., Mulvey v. Illinois Bell Telephone Co., 53 m.2d 591, 294 N.E.2d 689 (1973) (fact of remarriage introduced by defense counsel in voir dire; defense verdict upheld against claim of error by plaintiff even though court acknowledged fact ofremarriage would not have been admissible). In Mulvey, the majority ofthe court acknowledged that "there may be cases in which errors which go to the question ofdamages may be so pervasive and prejudicial as to create the likelihood that they may have affected a jury's decision on the issue of liability. However, we do not believe this to be such a case." 294 N.E.2d at 694. Ofcourse, Mulvey was decided before loss ofconsortium and loss ofsociety were recognized as elements ofthe pecuniary loss suffered by the surviving spouse ofa person wrongfully killed. Elliott v. Willis, 92 m.2d 530, 442 N.E.2d 163, 65 Ill.Dec, 852 (1982). It has been held that the fact ofremarriage is relevant in loss-of-spousal-consortium claims. Martin v. Illinois Central Gulf R.R., 237 Ill.App.3d 910, 606 N.E.2d 9, 179 Ill.Dec. 177 (1st Dist. 1991); Dotson v. Sears, Roebuck & Co., 157 Ill.App.3d 1036, 510 N.E.2d 1208, 110 Ill.Dec. 177 (1st Dist. 1987); Carter v. Chicago & Illinois MidlandRy., 130 m.app.3d 431,474 N.E.2d 458,85 Ill.Dec. 730 (4th Dist. 1985). Cf Simmons v. University of Chicago Hospitals & Clinics, 162 m.za I, 642 N.E.2d 107, 204 Ill.Dec. 645 (1994) (acknowledging principle). If loss of society is waived by the surviving spouse, the fact ofremarriage should not be admissible. C. [6.17] Challenges The court or any party may challenge a juror for cause. Ifa prospective juror has a physical. impairment, the court shall consider the juror's ability to perceive and appreciate the evidence when considering a challenge for cause. 735 ILCS 5/ There are several statutory grounds for challenging a petit venire member for cause, including not being a United States citizen, not being an inhabitant ofthe county, being under the age of 18, not being free from all legal exception, not being of fair character, not being of approved integrity, not being of sound judgment, not being well-informed, not being able to understand the English langnage, not being one ofthe regular panel, having served as a juror on the trial ofa cause in any court in the county within one year previous to the time the individual is being offered as a juror, and being a party to the pending suit. See 705 ILCS 305/2, 305/14. There are several other bases for which a potential juror may be but is not necessarily required to be excused for cause, including priorjury service on an earlier trial in the same case, being affiliated with or related to one affiliated with an insurance company of the defendant, having a fixed opinion as to the merits of the case or any material issue involved in the case, having bias or prejudice against or in favor ofa party, having a familial relationship with a party, and being a stockholder, officer, agent, employer, or employee ofa party. In addition to challenges for cause, each side is allotted peremptorychallenges. A peremptory challenge provides the right to challenge a certain number ofjurorswithout showing any cause or reason. There are some constitutional limits, however, on the exercise ofperemptory challenges. See, e.g., Tucker v. Illinois Power Co., 217 Ill.App.3d 748, 577 N.E.2d 919, 160 Ill.Dec. 594 (5th Dist. 1991) (principles ofbatson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct (1986), precluding use ofperemptory challenges to exclude jurors on basis ofrace, applied to customer's civil action against gas utility basedon alleged violations ofillinois Public Utilities Act)

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